City of Bath and Council 74, AFSCME, No. 81-UC-01, affirmed by 81-A-01.

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD      
                                                   Case No. 81-UC-01
                                                   [Issued August 21, 1980]

CITY OF BATH                )
    and                     )
                            )                    UNIT CLARIFICATION
LOCAL 1828, COUNCIL 74,     )
     The City of Bath filed a Petition for Unit Clarification with the Executive
Director of the Maine Labor Relations Board on July 2, 1980.  A hearing in the
matter was held on August 14, 1980, in Augusta, Maine, pursuant to Section 966 of
the Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A.  966.
     Present for the City were:

          Roger R. Therriault                 City Solicitor
          C. Russell Bruton                   Communications and Police
                                              Departments Head (Police
          Michael L. Austin                   Acting City Manager
     Present for the Union were:

          John J. Ezhaya                      AFSCME Representative
          Carole D. Thomas                    Dispatcher
          Rita A. Sturtevant                  Dispatcher
     By its petition the City seeks a determination that the dispatchers of the
City's new Communications Department are not part of the Police Department bargain-
ing unit.  At the hearing the City also alleged that a Dispatcher Supervisor was a
"supervisor" within the meaning of 26 M.R.S.A.  966(1) and should not be included
in the same bargaining unit as the other dispatchers.  The Union countered that the
dispatchers' job duties had not changed significantly despite the new organizational
structure and, therefore, that the petition should be denied.  It also disputed the
"supervisor" claim.
     Six documents were submitted into evidence:  the City ordinance establishing
the new Communications Department; minutes of two City Council meetings; a letter
to an AFSCME representative from the City Manager; the original Agreement on Appro-
priate Bargaining Unit (Form 1); and the Petition for Unit Clarification with 1977-
1980 contract.
                                  FINDINGS OF FACT
     Based on the testimony, representations and documents submitted, I find the
          1.  On February 9, 1970, the parties agreed to an original bargain-
              ing unit consisting of Deputy Chief, Sergeant and Patrolman.
              Neither party was able to present any evidence bearing on the
              history of this bargaining unit description beyond the fact that

              the Dispatcher position first appeared in the 1976-1977
              contract.  The bargaining unit description in the most recent
              contract, from July 1977 to June 1980 (the Agreement), states
              that the Union is the bargaining agent "for the members of the
              Bath Police Department, with the exception of the Police
              Chief, Deputy Chief, Matron and Special Police."
          2.  In February 1979, after many years of consideration, the City
              passed an ordinance which created a new Communications Depart-
              ment.  It was charged with handling the communications of the
              police and fire departments and such other communications-related
              matters as the City Manager may decide.  The intention was to
              create a centralized dispatching system which would be more
              economical and effective in the long run.
          3.  Prior to the change, the bargaining unit contained two Sergeants,
              one Detective, five Senior Patrolmen, twelve Patrolmen, one
              Clerical, and four Dispatchers.  (The dispatchers and clerical
              workers are not sworn police officers.)  The dispatchers were
              located in the City Hall building, right across the hallway from
              the patrolman squad room.  They staffed the communications center
              at all times, working around the clock, as do the police officers.
              They handled all police communications, including administrative
              calls, and also some ministerial police functions such as:  parking
              ticket bookkeeping, sending out notices, and receipt of payment;
              police department filing; bicycle registration; and the issuance
              of permits to drive within the City without a current motor vehicle
              inspection sticker.
          4.  Prior to the change, the dispatching of fire vehicles and ambu-
              lances was handled by fire fighters located at the fire station.
              The Public Works Department and Sewer Department, soon to be con-
              solidated into a single "Public Services" Department, each have the
              need for a small amount of dispatching which is currently handled
              as part of the duties of a secretary in Public Works.
          5.  The immediate impact of the reorganization was the consolidation of
              fire and ambulance dispatching with police dispatching.  This was
              accomplished with new communications lines and equipment, costing
              more than $10,000.00.  The City plans on adding the Public Service
              Department communications to this center as well.  An emergency
              "911" system is also in the planning stage.  When implemented, such
              a system would require additional equipment which would require
              more space than the communications center now has available.  An
              expanded space, perhaps at a new location, would be required.  There
              are no specific plans or dates at this time.  The City also hopes
              that its centralized dispatching center will attract surrounding
              municipalities to contract with the City for additional dispatching
          6.  The Police Department Head, Police Chief Bruton, was also named as
              the Communications Department Head.  In addition, Dispatcher Sturte-
              vant was denominated "Supervisor of Communications" and given a ten
              percent pay raise.  Finally, the hiring of an additional dispatcher
              was authorized.
          7.  The changes in the job duties of the dispatchers have included the
              addition of fire and ambulance communications.  This constitutes
              approximately a l4% increase in message traffic.  This percentage
              is based on a breakdown of 2,879 police-related complaints versus
              389 fire and ambulance-related complaints over the last six months.
              All other duties and functions have remained the same, with the sole
              exception of relief from accepting parking ticket payments.
          8.  As before, patrolmen continue to fill in for dispatchers on occa-
              sions for short breaks.  In addition, patrolmen continue to transport
              the dispatchers to and from home in police cruisers:  a practice
              necessitated by safety concerns and a parking shortage.  Dispatcher
              uniforms (dark blue pants with light blue shirt, in contrast to the
              solid dark blue of police officers and firefighters), are still
              ordered through the police quartermaster.

          9.  When the City created the Communications Department,
              it notified the Union of all the key events.  A separate
              budget was created by transferring funds from the Police
              Department budget.  The City explained, in a letter dated
              July 25, 1979, that it no longer considered the dispatchers
              to be part of the police bargaining unit.  It indicated its
              intention to continue their benefits, which were the same as
              other police department employees, as provided in the Agree-
              ment until its expiration on June 30, 1980.  It was willing
              to bargain with the dispatchers for a separate contract at
              any time properly requested.  There is no evidence that the
              Union ever agreed to a new, separate unit or acquiesced to
              the City's claim.  To the contrary, when bargaining commenced
              for a successor agreement to begin on July 1, 1980, the Union
              was maintaining that the dispatchers were still in the unit.
              Although the City had hoped for a voluntary rearrangement
              of the units, it filed this petition when it was clear that
              such a prospect had been dashed.

         10.  All concede that there have been no major problems as a result
              of the addition of the fire and ambulance dispatch service.

         11.  A dispatcher has been the secretary/treasurer of the Local for
              the four years ending on June 1980.  Sturtevant is currently a
              member of the negotiating team.

         12.  The job of Supervisor of Communications requires that Sturte-
              vant prepare the monthly schedule for dispatchers, which takes
              one half hour.  She also must work those shifts which become va-
              cant because of vacation, sickness, or other contingencies.  If
              each of the four dispatchers work a full 40 hour week, then
              Sturtevant would work alone for one ten hour shift, and would
              be with another dispatcher for thirty other hours.  During all
              these times she performs routine dispatching duties.  The occasion
              has never arisen in 16 months where Sturtevant has actually acted
              as department head, although she has been advised to do so in the
              event of the absence of Department Head Bruton.

     The City maintains that the dispatcher job has been evolving over the years
to the point that now, with the creation of a separate department for communications
and with the commensurate broadening of duties beyond the police field, the dis-
patchers no longer have a community of interest with police employees.  Moreover,
the two groups will diverge even more as the services expand to other departments
and to other towns, with the implementation of the new 911 service, and, conceiv-
ably, with the relocation to a new facility apart from the police center.  The City
also contends that a case for separation exists by the very fact that dispatchers
are not sworn police officers.  Finally, the City argues that the ministerial police
duties that the dispatchers perform are purely a matter of the practicalities of a
small City and not an integral or permanent part of the dispatcher position.
     The Union contends that the City's reorganization has insufficient substance
to warrant the modification of this historical bargaining unit.  It argues that
the community of interest is still extremely strong and that dispatchers are in
bargaining units with sworn police officers all across the state.
     With respect to the Supervisor of Communications, the City contends that she
should be in a separate unit whether the other dispatchers are considered to be in
or out of the existing unit.  The Union counters that she is merely a "working
supervisor" with minimal supervisory duties who should remain in the unit with


other dispatchers.

     I conclude that the dispatchers are still in the bargaining unit with the
police department employees, primarily because the change that has taken place has
been one of form with little substantive impact on the community of interest
evident within this grouping of public employees.  In addition, the Supervisor
of Communications does not perform sufficient supervisory functions as established
in  966(1) to be excluded from the unit which includes the dispatchers.  I will
therefore make an appropriate unit description modification to reflect the new cir-
     I view unit clarification petitions within the framework of analysis set forth
in Teamsters Local 48 and Town of Kittery, Unit Clarification Report (June 5, 1979).
[No. 79-UC-08]
          "The main policy objectives involved in unit clarification
           are the same as in initial unit determinations:  to insure
           to employees the fullest freedom in exercising their labor
           rights and a clear and identifiable community of interest
           which will foster employment peace and stability through
           collective bargaining.  26 M.R.S.A.  961;  966(2); see
           Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962)."
Kittery, supra, at page 6.
     The threshhold requirements of the petition are met here.  First, there has
been a sufficient change in circumstances related to the issue of unit determina-
tion:  a departmental reorganization by its nature raises this question.  Second,
it is at least arguable that the unit description would not include employees of
a new Communications Department.  Thus, this petition is a proper vehicle to
determine this question.
     The inquiry is in three factual areas:  the intent of the parties when the
unit description was created; the course of conduct of the parties since the
change in circumstances; and the traditional community of interest standards.
See, Kittery, supra, at pages 7-8.
     It is not known when or how the current unit description was created or what
the intent of the parties was at the time of its creation.  The only evidence is
the language itself:  "the members of the Police Department. . ."  This language
was agreed on before the creation of the Communications Department.  I conclude
that the unit description cannot be read to automatically preclude the continued
membership of the dispatchers solely because they have been placed into a new
Department.  It is only the substantive impact of the change which could give
controlling meaning to this language.  However, the new Department, while separate
in theory, is merely a subdivision of the Police Department.  It is under the same
department head; it performs overwhelmingly the same functions in the same location.
Under these circumstances, the language on its face cannot control the outcome.
     The second area is the course of conduct of the parties.  No implication is
evident here.  The City has not acquiesced in the dispatchers' continued presence
in the unit.  The Union has also not dropped its claim of continued representation
in the unit.

     The final area, community of interest, is a dominating factor since the
facts indicate that there is still a strong community of interest and I conclude
that it would ill serve the policies of stability and freedom to break up this                    
group of employees.  Among the factors itemized in Maine Teachers Association and
Council No. 74, AFSCME , Unit Determination Report (Oct. 20, 1978) [78-UD-40], most of them
point to a community of interest.
     There is a general similarity of work type, in that all deal with the world
of emergencies and public protection.  Indeed the Dispatcher's job is integrated
with that of the police officers in that they communicate with each other constantly
during the working day and have frequent other interchanges.  They are subject to
the common supervision of Police Chief Bruton.  In addition, they work in the same
general location, desire to remain in the same unit, and have a history of success-
ful collective bargaining since at least 1976.
     While it is true that there are different qualifications, skill and training
involved, it is nonetheless clear that an overall consideration dictates the con-
clusion that the community of interest is strong.  In essence, the drift apart that
concerns the City is mostly theoretical at this point.  Only the present circum-
stances, however, can guide the hearing examiner.  See, Waterville Police Department
and Teamsters Local Union No. 48, Report of Appellate Review (Oct. 4, 1978) [78-A-06]. While
it is possible that a sufficient community of interest may not remain after the
Communications Department has taken on all the prospective responsibilities and after
it has moved to a new facility, such a determination must wait until that time. For
the moment, the separation is not yet significant.[fn]1
     The City's second argument is simply not borne out by experience in this state.
The nature of the sworn police officer's work is not in itself so different that they
should be in a separate unit from dispatchers.  Rather, dispatchers are included with
police officers in many units throughout the state.  E.g., Teamsters Local Union No.
48 and City of Biddeford, Unit Determination Report (Aug. 4, 1978) [78-UD-34]; Brunswick Police
Communications Operations Association and the Town of Brunswick, Report of Appellate
Review of Unit Determination Hearing (MLRB Jan. 17, 1977) [77-A-03].  This is only one of many
factors to be considered in the overall judgment.
     The City's final argument also does not alter the conclusion.  The management's
motive in having dispatchers perform ministerial police work is immaterial to this
issue.  It is laudable that the City saves the expense of hiring additional police
department employees.  The fact is, however, that the performance of these functions
tends to contribute to a working group community of interest between dispatchers and
police officers, albeit to a minor degree.
     The City is not penalized by the result of this petition.  Indeed, given the
successful collective bargaining history over the last ten years, the City may very
well save time and effort in the long run by having to negotiate only one contract
rather than two.  But at the bottom line, it is the fullest freedom of the employees
to exercise labor rights within a grouping with common interests that is the key to
labor stability.  If this grouping were prematurely divided, that goal would be com-
promised in this case.

1.  The public policy concerns expressed in AFSCME and City of Brewer, Unit Clarifi-
    cation (Feb. 15, 1979) [79-UC-04], are not evident in this case.

     The Supervisor of Communications is what is referred to as a "working
supervisor."  Teamsters Local Union No. 48 and Lewiston-Auburn Water Pollution Con-
trol Authority, Unit Determination Report (Feb. 23, 1979) [79-UD-15].  She performs only a
minimal amount of supervisory functions, i.e., scheduling.  This involves less than
one percent of her time.  The remainder of the time she is simply a dispatcher with
the added inconvenience of working as a fill-in when shifts are vacant.  There is no
question but that she should be in the same unit with the other dispatchers.
     In summary, the determination is that the Supervisor of Communications and the
Dispatcher positions continue to fall within the existing appropriate bargaining
unit.  Given the change in organizational structure and the creation of the new
job title, the bargaining unit description is hereby modified from the form con-
tained in Finding of Fact  1 to:
          "for the members of the Bath Police and Communications
           Department, with the exception of the Police Chief,
           Deputy Chief, Matron and Special Police."
     The caveat should be noted, however, that this unit is appropriate at this time
but may be subject to future clarification depending on changes in circumstances
which are now planned.
Dated at Augusta, Maine, this 21st day of August, 1980.
                                          MAINE LABOR RELATIONS BOARD
                                          Michael C. Ryan
                                          Hearing Examiner